Yang (Migration)

This matter concerned an application for a Subclass 485 (Temporary Graduate) visa by Mr Yang. The dispute arose because the applicant had not provided evidence of an Australian Federal Police (AFP) check when lodging his visa application, a requirement stipulated by clause 485.213 of Schedule 2 to the Migration Regulations. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met this specific visa criterion.

The central legal issue before the Tribunal was whether the applicant satisfied clause 485.213, which mandates that an applicant, and any other person included in the application aged 16 or over, must have applied for an AFP check within the 12 months immediately preceding the visa application date. The applicant admitted he had not applied for an AFP check before lodging his application, believing he could submit it later due to his student visa nearing expiry. He contended he was misled by the online application system and was unaware of the requirement's significance.

The Tribunal acknowledged that the applicant's failure to obtain the AFP check was due to a misunderstanding and that he subsequently obtained a clear check shortly after his visa application was refused. However, the Tribunal found that it had no discretion to waive the mandatory requirement of clause 485.213. Based on the evidence, the applicant had not met this criterion, and consequently, he did not satisfy the requirements for the grant of a Subclass 485 visa. The Tribunal affirmed the decision not to grant the visa.